IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MELODY GARNER,

Plaintiff,

vs. Civil Action 2:11-CV-676

Judge Graham

Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner

of Social Security,

Defendant.

REPORT AND RECOMMENDATION

I.

Introduction and Background

This is an action instituted under the provisions of 42

U.S.C. §§405(g), 1383 for review of a final decision of the

Commissioner of Social Security denying plaintiff’s application for 

supplemental security income. This matter is now before the Court

on plaintiff’s Statement of Errors, Doc. No. 13, and the

Commissioner’s Memorandum in Opposition, Doc. No. 18.

Plaintiff Melody Garner filed her application for

benefits on June 4, 2007, alleging that she has been disabled since

June 1, 2005, as a result of rheumatoid arthritis, anxiety,

depression and a pinched nerve. PAGEID 175-77, 241. The application

was denied initially and upon reconsideration, and plaintiff

requested a de novo hearing before an administrative law judge.

A hearing was held on March 19, 2010, at which plaintiff,

represented by counsel, appeared and testified, as did Carl W.

Hartung, who testified as a vocational expert. In a decision dated

April 28, 2010, the administrative law judge concluded that

plaintiff is able to perform a reduced range of light work despite

her severe impairments and is therefore not disabled within the

meaning of the Social Security Act. PAGEID 43-61. That decision

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 1 of 18 PAGEID #: <pageID>
became the final decision of the Commissioner of Social Security

when the Appeals Council declined review on June 22, 2011. PAGEID

32-35.1

Plaintiff was 53 years of age at the time the

administrative law judge issued her decision. She has a tenth

grade, “limited” education and claims past relevant work experience

as a baker’s helper, store laborer and welder. PAGEID 59, 195, 199,

228, 252.

II.

Plaintiff’s Testimony2

Plaintiff testified at the administrative hearing that

she lives alone but that her son stops by every other day. PAGEID

83. She smokes approximately five cigarettes and drinks

approximately two ounces of beer per week. PAGEID 84-85. After

initially denying the use of illegal drugs, plaintiff admitted to

some use of marijuana, PAGEID 85-86, and a remote history of

cocaine use. PAGEID 85. Plaintiff testified that she left her last

job because the company went out of business. PAGEID 87.

Plaintiff testified to constant pain in her low back,

arms, legs and left hand. PAGEID 94, 97. Plaintiff uses narcotic

pain medication, PAGEID 101-02, and a pain cream. PAGEID 99.

Plaintiff estimated that she can sit for no more than 25

minutes and stand for 15 minutes. PAGEID 96. She cannot make a

fist or lift even a half gallon of milk with her left hand. Id.

She can lift five to 10 pounds if she uses both hands. PAGEID 97. 

She stopped babysitting her small grandchildren in June 2009 as a

result of her physical limitations. PAGEID 98-99.

1

Plaintiff asserts that a subsequent application for supplement security

income was granted, effective May 24, 2010. Statement of Errors, p. 3.

2

Because resolution of the issues presented in this case do not turn on

the vocational expert’s testimony, the Court will not summarize that testimony

presented at the administrative hearing.

2

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 2 of 18 PAGEID #: <pageID>
Plaintiff also testified to suffering from depression. 

PAGEID 91-94. As a result of her mistrust of others, she has

difficulty interacting with people. She takes Zoloft, Ambien and

Lorazepam for anxiety and depression. PAGEID 101-02.

As to her daily activities, plaintiff testified that she

is able to maintain her personal hygiene and grooming. PAGEID 103.

She maintains her own household, makes the bed, prepares meals,

washes dishes, irons, dusts, vacuums and goes grocery shopping. 

PAGEID 103-04. On a typical day, she watches television or takes a

nap. PAGEID 105. She sees her boyfriend and his mother regularly.

PAGEID 106, 116. 

III.

The Medical Evidence of Record.

Physical Impairments

Plaintiff treated at Angel Health Care/Main Street

MedCenter from May 2004 through October 2006 for complaints of pain

in her left hip and leg, radiating low back and neck pain. PAGEID

358-96. Clinical examination revealed tenderness in her legs and

decreased lumbar range of motion. PAGEID 377-84, 392.

Plaintiff presented to the emergency room in September

2006 for chronic low back pain radiating into her right leg. 

PAGEID 336-43. She had been seen for the same problem 3 days

earlier but had left against medical advice. PAGEID 343, 344-46. 

Plaintiff reported that she had run out of her medications two

months earlier. PAGEID 343, 345. She denied using illicit drugs.

PAGEID 338. Plaintiff’s examination was essentially normal. She

was diagnosed with back pain, not otherwise specified, and

sciatica. She was provided medication. PAGEID 338-39.

In October 2006, plaintiff presented to the emergency

room for low back pain. PAGEID 493-98. Examination revealed diffuse

back tenderness in the lumbar paraspinal musculature. Neurologic

examination was normal and straight leg raising was negative.

3

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 3 of 18 PAGEID #: <pageID>
PAGEID 497. Plaintiff was diagnosed with chronic low back pain and

degenerative joint disease. She was given prescriptions for a

muscle relaxant, a NSAID and a steroid. PAGEID 498.

Lynne Torollo, Ph.D., M.D., completed a basic medical

form in October 2006. PAGEID 427-28. She diagnosed low back pain,

right arm pain, left leg pain and depression. Dr. Torollo opined

that plaintiff was limited to lifting/carrying up to 20 pounds

occasionally and 10 pounds frequently, with no limitations in her

ability to sit, stand or walk. PAGEID 428. Dr. Torollo concluded

that plaintiff was employable. Id.

Plaintiff returned to the emergency room on November 22,

2006, with complaints of ongoing low back pain. PAGEID 369-70. She

was given a prescription for Vicodin. 

In February 2007, plaintiff visited the emergency room

for acute exacerbation of her chronic lumbosacral strain after

running out of her medications. PAGEID 448-49. Examination

revealed diffuse lumbosacral tenderness, but her neurological

examination was normal and she had full range of motion in the

extremities. Id. She was given a prescription for pain medication. 

Id.

Vernon Williams, M.D., was plaintiff’s primary care

physician from November 2006 until at least February 2009. PAGEID

462-80, 504-75, 613-15. 716-45, 844-51. Dr. Williams regularly

described plaintiff as alert and cooperative with a normal gait.

PAGEID 467-68, 471-73, 478, 509-11, 732, 740, 744-45. Dr. Williams

recommended over-the-counter medications for her pain complaints.

Id. In March 2007, Dr. Williams examined plaintiff for complaints

of low back pain, numbness in her lower extremities and pain in her

hands. Examination revealed muscle spasm and tenderness, with a

positive straight leg raising on the left. PAGEID 475-76. A May

2007 MRI of plaintiff’s lumbar spine revealed mild degenerative

changes in the lower lumbar region, predominately involving the

4

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 4 of 18 PAGEID #: <pageID>
facet joints of L3-4 and L4-5. PAGEID 483. A June 2007 MRI of the

left shoulder demonstrated tendinosis, a small supraspinatus tendon

tear, and subacromial subdeltoid bursitis. PAGEID 541.

Plaintiff presented to the emergency room for back pain

after running out of pain medications on June 19, 2007. PAGEID 450-

51. Musculoskeletal examination revealed paraspinal tenderness

around L1-L3. PAGEID 451. On examination, which was characterized

as benign, id., plaintiff demonstrated a good range of motion and

straight leg raising was within normal limits. Her mood and affect

were appropriate. Plaintiff was provided Vicodin, ibuprofen and

prednisone. Id.

On June 23, 2007, plaintiff presented to the emergency

room with multiple forearm lacerations and a tendon laceration of

the left index finger. PAGEID 453-54. On July 16, 2007, plaintiff

underwent surgical repair of the extensor tendon of the second

finger of her left hand. PAGEID 582-83. Three days after surgery,

Dr. Williams noted that plaintiff had not yet filled her

prescription medication for her hand injury. PAGEID 468. Plaintiff

removed her splint against medical advice, an action that,

according to the surgeon, “likely disrupted the tendon repair.”

PAGEID 698. In December 2007, the surgeon instructed plaintiff to

return in two weeks, but plaintiff did not follow up until March

2008. PAGEID 696-97. Plaintiff underwent extensor tenolysis and MP

capsulotomy in March 2008, PAGEID 675-76, following which plaintiff

was instructed to complete hand therapy, which she failed to do. 

PAGEID 665-67, 698, 701, 705-06. During a November 2008 emergency

room examination, plaintiff exhibited good flexion and extension of

all fingers and thumb. PAGEID 842.

In June 2007, Dr. Williams completed a physical capacity

evaluation. PAGEID 458-59. He opined that plaintiff could sit for

30 minutes at a time, for only a total of 40 minutes throughout a

workday; she could stand/walk for 20 minutes at a time, for only a

5

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 5 of 18 PAGEID #: <pageID>
total of 30 minutes in a workday; she could lift two pounds

occasionally and one pound frequently. Plaintiff would also require

additional breaks and a sit/stand option. According to Dr.

Williams, plaintiff could only occasionally balance and engage in

gross manipulation and could rarely or never perform other postural

activities, reach, handle, feel, push/pull or engage in fine

manipulation. Dr. Williams stated that these limitations were

based on plaintiff’s bilateral hip pain, lumbar degenerative

changes, left shoulder tendinitis with tear and left hand tendon

damage. 

Plaintiff presented to the emergency room in August 2007,

complaining of thoracic and low back pain. PAGEID 579-81. She

reported that she had no medicine. Id. Plaintiff was given Flexeril

and Naprosyn. PAGEID 581. When seen by Dr. Williams the following

month, plaintiff reported that she had misplaced her prescriptions

for Vicodin and muscle relaxants. PAGEID 511.

In November 2007, the record was reviewed by state agency

physician William Bolz, M.D., who opined that plaintiff could lift

20 pounds occasionally and 10 pounds frequently, could stand and/or

walk for six hours in an eight-hour workday, and could sit for six

hours in an eight-hour workday. PAGEID 617. Plaintiff could engage

in postural activities only occasionally, except that she could

frequently balance and could never climb ladders, ropes or

scaffolds. PAGEID 618. She could only occasionally engage in

overhead lifting on the left side because of shoulder problems. 

PAGEID 619. Dr. Bolz concluded that Dr. Williams’ June 2007 opinion

was not consistent with the totality of the medical evidence.

PAGEID 622. Dr. Bolz’s assessment was affirmed by state agency

physician Gerald Klyop, M.D., in May 2008. PAGEID 655.

In May 2008, Dr. Williams completed a second physical

residual functional capacity evaluation. PAGEID 651-52. According

to Dr. Williams, plaintiff’s low back pain and fatigue limited

6

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 6 of 18 PAGEID #: <pageID>
plaintiff to lifting/carrying one to two pounds occasionally,

standing/walking for a total of three hours in a workday, for 30

minutes at a time, and sitting for a total of four hours in a

workday, for one hour at a time. PAGEID 651. She could never climb

or crouch, could rarely stoop and only occasionally balance. She

could rarely handle, push/pull, or engage in fine manipulation and

could occasionally reach, feel and engage in gross manipulation as

a result of lost strength and agility to the left hand. PAGEID 652. 

 An August 2008 musculoskeletal examination was normal.

PAGEID 740. In February 2009, Dr. Williams noted that Tramadol

helped plaintiff’s arthritis and Flexeril helped her intermittent

muscle spasms. Her anxiety and depression were “presently stable,”

and she felt “much better” when she took Busperal and Citalopram.

PAGEID 845. On clinical examination, Dr. Williams noted decreased

range of motion in the left arm, decreased strength in the hands

and lumbar muscle spasms. PAGEID 844.

The record also contains treatment notes from the

Livingston Lockbourne Avenue Health Center dating from January 2009

though February 2010. PAGEID 859-94, 910-20. Treatment notes

indicate that plaintiff frequently exhibited normal range of motion

without tenderness or swelling in her extremities. PAGEID 863, 869,

873, 877, 881, 893.

On November 2, 2009, plaintiff presented to the emergency

room with complaints of radiating left shoulder pain. PAGEID 904-

06. An x-ray of plaintiff’s left shoulder was within normal limits.

PAGEID 901. She was diagnosed with left shoulder degenerative joint

disease and given medication. PAGEID 905.

An x-ray of plaintiff’s cervical spine taken on March 24,

2010 documented 

[r]eversal of the usual cervical lordosis. . .

. This certainly could represent muscle spasm.

However, it could also be caused by the

degenerative disc disease which she definitely

7

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 7 of 18 PAGEID #: <pageID>
has. Chronic cervical disc disease is apparent

at C5-C6, C6-C7, and C7-T1. To a lesser extent

degenerative disc disease can also be seen at

C4-C5. At any rate, at C5-T1, there is disc

space narrowing, end plate sclerosis, and both

anteriorly and to a lesser extent posteriorly

directed osteophytes. The frontal view

demonstrates uncovertebral arthrosis at C5-C6

and to a lesser extent at C6-C7. The open

mouth view indicates the presence of

degenerative facet joint arthrosis between C1

and C2 on the right. I see no traumatic

changes. There is no discernible bone

destruction. 

PAGEID 921.

Mental Impairments

Plaintiff was consultatively examined by Scott Donaldson,

Ph.D., in November 2006 on behalf of the Bureau of Disability

Determination (“BDD”). PAGEID 399-403. Plaintiff reported that she

spoke on the phone, watched television, occasionally cooked,

cleaned, laundered clothing and shopped for groceries. PAGEID 402.

She reported adequate occupational and familial relationships, got

along adequately with neighbors, clerks in stores or people in

public agencies; she had a friend who visited regularly. PAGEID

399-401. She reported that she had been enrolled in a special

education program. PAGEID 400. On mental status examination, Dr.

Donaldson noted that plaintiff was cooperative; her presentation

was anxious with a flat affect and agitated mood. PAGEID 400-02.

Dr. Donaldson diagnosed a mood disorder and generalized anxiety

disorder. PAGEID 402. According to Dr. Donaldson, plaintiff’s

ability to carry out one- or two-step job instructions may be weak,

but not impaired; her ability to perform repetitive tasks might be

mildly limited; her ability to attend to relevant stimuli was

likely to be mildly impaired; her interpersonal relationship skills

and ability to relate to supervisors and co-workers may be

moderately limited; and her ability to withstand the stress and

8

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 8 of 18 PAGEID #: <pageID>
pressures associated with day-to-day work activity appeared to be

moderately limited. PAGEID 402-03.

Plaintiff was evaluated by Michelle Evans, Ph.D., and

John Tilley, Psy.D., in December 2006 on referral from the

Department of Job and Family Services. PAGEID 434-47. Plaintiff

presented with a constricted affect and maintained poor eye contact

during the evaluation. She reported flashbacks, auditory

hallucinations and nightmares relating to previous assaults and

tragedies. On testing, plaintiff achieved a verbal IQ score of 68,

a performance IQ score of 70 and a full scale IQ of 66. PAGEID

440. Plaintiff was diagnosed with major depressive disorder, with

psychotic features, post traumatic stress disorder, anxiety

disorder and borderline intellectual functioning. Plaintiff was

assessed a Global Assessment of Functioning score of 48.3 PAGEID

445. The examining psychologists concluded that, from a purely

psychological perspective, plaintiff was unemployable. PAGEID 447.

Dr. Tilley also completed a mental functional capacity

evaluation. PAGEID 429-30. According to Dr. Tilley, plaintiff had

marked limitations in her ability to maintain regular attendance

and to be punctual within customary tolerances, to interact

appropriately with the general public and to get along with

coworkers or peers without distracting them or exhibiting

behavioral extremes. Plaintiff would be extremely limited in her

ability to work with others, to complete a normal workday or work

week, to accept instructions and to respond appropriately to

criticism from supervisors. PAGEID 429.

3

Health care clinicians perform a Global Assessment of Functioning to

determine a person’s psychological, social, and occupational functioning on a

hypothetical continuum of mental illness. It is, in general, a snapshot of a

person’s “overall psychological functioning” at or near the time of the

evaluation. Hash v. Commissioner of Social Sec., 309 Fed.Appx. 981, 988 n.1

(6th Cir. 2009); see also Diagnostic and Statistical Manual of Mental

Disorders, 4th ed., Text Revision at pp. 32-34. A GAF of 45 describes a person

with “serious symptoms ... or serious impairment in occupational, social, or

school functioning.” Id. at 34.

9

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 9 of 18 PAGEID #: <pageID>
In March 2007, plaintiff complained of extreme anxiety

and depression to Dr. Williams. PAGEID 475-76. Dr. Williams

prescribed Citalopram and Buspar. Id.

Dr. Donaldson again consultatively evaluated plaintiff in

October 2007. PAGEID 593-96. Plaintiff appeared to be agitated,

intimidated and anxious about the process. PAGEID 593. Plaintiff’s

affect was flat and her mood was depressed; she demonstrated

inadequate eye contact. When asked why she was disabled, plaintiff

replied, “I’ve got tons of medication. I am depressed all the time.

A tendon in my left arm is severed; I have staples in my arm and

hand. My son is locked up. I have a lump on my breast and a tumor

on my side.” Id. Plaintiff reported that she dropped out of school

in the ninth and that she had been enrolled in special education

classes. Id. Plaintiff reported that she cooked, cleaned and went

to a food pantry occasionally. PAGEID 595. Dr. Donaldson again

diagnosed a major depressive disorder and generalized anxiety

disorder. PAGEID 596. According to Dr. Donaldson, plaintiff’s

ability to understand, remember and carry out one- or two-step job

instructions might be weak but not impaired. PAGEID 596. Her

ability to perform repetitive tasks may be moderately limited by

her medical status. Id. Her ability to attend to relevant stimuli

may be moderately impaired; her interpersonal relationship skills,

as well as her ability to relate to supervisors and co-workers, may

be moderately limited; her ability to withstand the stress and

pressures associated with day-to-day work activity was moderately

limited. PAGEID 596.

In October 2007, Tonnie Hoyle, Psy.D., reviewed the

record on behalf of the BDD and opined that plaintiff was

moderately restricted in her activities of daily living and in

maintaining concentration, persistence and pace, and that she had

marked difficulties in maintaining social functioning. PAGEID 608.

According to Dr. Hoyle, plaintiff could work if she were limited to

10

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 10 of 18 PAGEID #: <pageID>
routine, one- to three-step tasks, could avoid stressful

situations, including frequent changes, strict production

standards, and frequent public contact, and if she were required to

have no more than occasional and superficial social interaction.

PAGEID 614. Another state agency psychologist, Irma Johnston,

Psy.D., reviewed the evidence and affirmed Dr. Hoyle’s assessment 

in May 2008. PAGEID 654.

Plaintiff saw Earl Greer, Ed.D., on two occasions: on

October 29, 2009 for intake and on November 2, 2009 for therapy. 

PAGEID 908-09. She canceled her third appointment with Dr. Greer

and failed to appear for her fourth appointment. Id.

III.

Administrative Decision

In her decision, the administrative law judge found that

plaintiff’s severe impairments consist of left shoulder tendinitis

and supraspinatus tear, lacerated left second finger extensor

tendon, status post surgery in July 2007 and March 2008,

degenerative disc disease, asthma, affective disorder, anxiety

disorder and borderline intellectual functioning. PAGEID 45. The

administrative law judge found that plaintiff does not have an

impairment or combination of impairments that meet or medically

equal any listed impairment. PAGEID 47. According to the

administrative law judge, plaintiff retains the residual functional

capacity to:

perform work involving lifting, carrying, pushing and/or 

pulling up to 20 pounds occasionally and 10 pounds

frequently. The claimant can sit for six hours in an

eight-hour workday and stand and/or walk for six hours in

an eight-hour workday. She can frequently balance. She

can occasionally climb ramps/stairs, stoop, kneel, crouch

and crawl. She cannot climb ladders/ropes/scaffolds or

perform overhead work on the left. She is limited to work

that does not require significant use of her left index

finger. Regarding her mental residual functional

capacity, the claimant is limited to low stress work

which, in her case, is defined as simple routine tasks

11

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 11 of 18 PAGEID #: <pageID>
without frequent changes, strict production quotas or

more than occasionally superficial contact with others.

She is not otherwise functionally limited.

PAGEID 53. Although this residual functional capacity did not

permit plaintiff to perform her past relevant work, PAGEID 59, the

administrative law judge relied on the vocational expert’s

testimony to find that plaintiff is capable of performing other

work that exists in significant numbers in the national economy

despite her lessened capacity. PAGEID 60. Accordingly, the

administrative law judge concluded that plaintiff is not disabled

within the meaning of the Social Security Act. PAGEID 61. 

V.

DISCUSSION

Pursuant to 42 U.S.C. §405(g), judicial review of the

Commissioner’s decision is limited to determining whether the

findings of the administrative law judge are supported by

substantial evidence and employed the proper legal standards.

Richardson v. Perales, 402 U.S. 389 (1971). Longworth v. Comm’r of

Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). Substantial evidence

is more than a scintilla of evidence but less than a preponderance;

it is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. Jones v. Comm’r of Soc. Sec., 336

F.3d 469, 475 (6th Cir. 2003); Kirk v. Secretary of Health & Human

Servs., 667 F.2d 524, 535 (6th Cir. 1981). This Court does not try

the case de novo, nor does it resolve conflicts in the evidence or

questions of credibility. Bass v. McMahon, 499 F.3d 506, 509 (6th

Cir. 2007).

In determining the existence of substantial evidence,

this Court must examine the administrative record as a whole. Kirk,

667 F.2d at 536. If the Commissioner’s decision is supported by

substantial evidence, it must be affirmed even if this Court would

decide the matter differently, Tyra v. Sec’y of Health & Human

12

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 12 of 18 PAGEID #: <pageID>
Servs., 896 F.2d 1024, 1028 (6th Cir. 1990)(citing Kinsella v.

Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983)), and even if

substantial evidence also supports the opposite conclusion.

Longworth, 402 F.3d at 595.

In her Statement of Errors, plaintiff presents two

arguments. She contends, first, that the administrative law judge

erred in her analysis of plaintiff’s pain and, second, that the

administrative law judge erred in her evaluation of the opinions of

treating and examining physicians. 

Plaintiff first complains that the administrative law

judge failed to properly assess plaintiff’s subjective complaints

of pain. Subjective complaints of disabling pain must be supported

by objective medical evidence in order to serve as a basis for a

finding of disability. Casey v. Secretary of Health and Human

Services, 987 F.2d 1230 (6th Cir. 1993). See also 42 U.S.C.

§423(d)(5)(A). In evaluating subjective complaints of disabling

pain, a court looks to the record to determine whether there is

objective medical evidence of an underlying medical condition. If

so, then, the court must determine (1) whether objective medical

evidence confirms the severity of the alleged pain arising from the

condition, or (2) whether the objectively established medical

condition is of such severity that it can reasonably be expected to

produce the alleged disabling pain. Stanley v. Secretary of Health

and Human Services, 29 F.3d 115, 117 (6th Cir. 1994) (quoting

Duncan v. Secretary of Health and Human Services, 801 F.2d 847, 853

(6th Cir. 1986).

An administrative law judge is not required to accept a

claimant’s subjective complaints, but may instead properly consider

the credibility of a claimant. See Walters v. Commissioner of Soc.

Sec., 127 F.3d 525, 531 (6th Cir. 1997). Because the administrative

law judge has the opportunity to observe a witness’ demeanor while

testifying, her credibility determinations are accorded great

13

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 13 of 18 PAGEID #: <pageID>
weight and deference. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.

2001). However, credibility determinations must be clearly

explained. Auer v. Secretary of Health and Human Servs., 830 F.2d

594, 595 (6th Cir. 1987). If the administrative law judge’s

credibility determinations are explained and enjoy substantial

support in the record, a court is without authority to revisit

those determinations. See Beavers v. Secretary of Health, Educ. and

Welfare, 577 F.2d 383, 386-87 (6th Cir. 1978). See also Felisky v.

Bowen, 35 F.3d 1027 (6th Cir. 1994).

The administrative law judge in this case noted and

followed the appropriate standards, performed the appropriate

evaluation of the evidence and clearly articulated the bases of her

credibility determinations. The administrative law judge devoted

almost four pages to her consideration of plaintiff’s subjective

complaints, but found that those complaints were not fully

credible. PAGEID 56-59. The analysis and the credibility

determination of the administrative law judge enjoy substantial

support in the record. The Court will not revisit that credibility

determination. See Jones v. Commissioner of Social Security, 336

F.3d 469, 476 (6th Cir. 2003).

Next, plaintiff contends that the administrative law

judge failed to accord appropriate weight to the opinions of

plaintiff’s treating and examining physicians. The administrative

law judge expressly rejected the extreme limitations reflected in

the assessments by Dr. Williams: 

Consideration has been given to opinions expressed by

treating physician Vernon Williams, M.D., on June 26,

2007 and May 6,2008. However, these opinions cannot be

given any great weight for the same reasons as set forth

by the BDD physician, . . . i.e., lifting restrictions of

two pounds and significant limitations in other

exertional and non-exertional activities are simply not

consistent with the totality of the medical evidence

of record, to which Dr. Williams did not have access. It

appears that the limitations set forth by Dr. Williams

14

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 14 of 18 PAGEID #: <pageID>
were based primarily on the claimant's subjective

complaints, which, for the reasons stated . . . , cannot

be found to be entitled to full credibility. It is noted

that Dr. Williams is a family physician who, unlike the

State Agency physicians, has no special expertise in

reviewing an objective record and formulating an opinion

as to medical severity and limitations stemming from

impairments. It is of further note that Dr. Williams' two

opinions are inconsistent with each other. For example,

in his earlier opinion he stated that the claimant could

sit for 40 minutes total in a workday and stand/walk for

only 30 minutes total in a workday; however, in his more

recent opinion, he stated that the claimant could sit for

a total of four hours in a workday and stand/walk for a

total of three hours in a workday. Dr. Williams did not

explain, nor does the medical evidence document, any

change in the claimant's condition to support these

inconsistencies. Moreover, based on his two opinions, one

would assume that there had been an improvement in the

claimant's condition, which is contrary to the claimant's

testimony.

PAGEID 55 (citation to record omitted).

In rejecting the opinion of a treating physician, an

administrative law judge must give “good reasons” for the weight

given to the opinion of that treating source. Blakley v.

Commissioner of Social Security, 581 F.3d 399, 406 (6th Cir. 2009); 

Wilson v. Commissioner of Soc. Sec., 378 F.3d 541, 544 (6th Cir.

2004); 20 C.F.R. §416.927(d)(2). In meeting this standard, the

administrative law judge must consider certain factors,

specifically “the length of the treatment relationship and the

frequency of examination, the nature and extent of the treatment

relationship, the supportability of the opinion, the consistency of

the opinion with the record as a whole, and the specialization of

the treating source.” Id. The administrative law judge’s reasons

must also be based on evidence in the record and “be sufficiently

specific to make clear to any subsequent reviewer the weight the

adjudicator gave to the treating source’s medical opinion and the

reasons for that weight.” Id.

15

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 15 of 18 PAGEID #: <pageID>
In the case presently before the Court, the

administrative law judge carefully considered the entire record and

the reports and assessments of Dr. Williams, who offered no

objective support for his opinions of disability. This Court

concludes that the administrative law judge did not err in failing

to accord controlling or even great weight to the residual

functional capacity assessments articulated by Dr. Williams.

Similarly, the administrative law judge rejected Dr.

Tilley’s opinion, articulated following his consultative

psychological examination of plaintiff, that plaintiff is

unemployable, characterizing that opinion as “inconsistent with and

unsupported by the evidence of record as a whole, including an

analysis of the B and C criteria of Sections 12.04 and 12.06 of the

Listings of Impairments.” PAGEID 56. As the administrative law

judge noted, Dr. Tilley’s opinion appears to be based primarily on

the subjective statements of the plaintiff, whose credibility the

administrative law judge found to be wanting. Id. The

administrative law judge also noted that plaintiff was not taking

psychotropic medication at the time of Dr. Tilley’s evaluation. 

Id.

In short, the Court concludes that the administrative law

judge did not err in her evaluation of the opinions articulated by

Dr. Williams and Dr. Tilley.

Having carefully considered the entire record in this

action, the Court concludes that the decision of the Commissioner

is supported by substantial evidence. It is therefore RECOMMENDED

that the decision of the Commissioner be AFFIRMED and that this

action be DISMISSED.

If any party seeks review by the District Judge of this

Report and Recommendation, that party may, within fourteen (14)

days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and

16

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 16 of 18 PAGEID #: <pageID>
Recommendation, and the part thereof in question, as well as the

basis for objection thereto. 28 U.S.C. §636(b)(1); F.R. Civ. P.

72(b). Response to objections must be filed within fourteen (14)

days after being served with a copy thereof. F.R. Civ. P. 72(b).

The parties are specifically advised that failure to

object to the Report and Recommendation will result in a waiver of

the right to de novo review by the District Judge and of the right

to appeal the decision of the District Court adopting the Report

and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith

v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370

(6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir.

1981).

Date: July 6, 2012 s/Norah McCann King

Norah McCann King

United States Magistrate Judge

17

Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 17 of 18 PAGEID #: <pageID>
Case: 2:11-cv-00676-JLG-NMK Doc #: 19 Filed: 07/06/12 Page: 18 of 18 PAGEID #: <pageID>